Home' HR Monthly : September 2019 Contents September 2019 HRM magazine 37
TACKLE HR LAW
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In one case where an employee successfully
sued for unfair dismissal, Linfox truck driver
Glen Stutsel made derogatory comments about
his managers on his public Facebook page in
2011. When one of his managers saw the posts,
she made an official complaint and the truck
driver was then fired for serious misconduct.
The FWC, however, found that the driver’s
employment had been unfairly terminated.
While Stutsel’s comments may have been
“outrageous”, it was found they did not
constitute a personal attack on his employer or
managers. Instrumental to the finding was the
fact that Linfox had no specific social media
policy in place at the time.
Exceptions to the rule
In the same month Folau shared his post,
Dr Peter Ridd won an unfair dismissal against
James Cook University after he was fired
for criticising colleagues on Sky TV and
in private emails. Like RA and SBS, James
Cook University claimed that Ridd was not
fired for his views, but for breaching the
institution’s code of conduct regarding issues
like confidentiality and communication. But the
presiding judge found the guarantee of academic
freedom enshrined in the university’s enterprise
agreement overrode the code of conduct.
“In academic employment, there are
additional protections of people’s rights to
speak and to engage in intellectual and political
discussion under their enterprise agreements,”
says Forsyth. Ridd’s case was an example where
“somebody did succeed in asserting their rights
to express a political opinion, but only because
there was an additional sou rce of protection.
Rather than relying on discrimination law, his
enterprise agreement guaranteed him the right
to express his views.”
The way forward
Some critics claim codes of conduct and
contractual law grant employers too much
control over their employees’ private lives.
Byrnes says, “Some codes of conduct are poorly
drafted, poorly considered and do overreach.”
Bornstein, who represented both McIntyre
and Williamson in their unfair dismissal
cases, argues that the connection between the
behaviour of an employee and their employment
is increasingly indirect. “It’s all about brand
management,” he told podcast host Tom
Ballard. “A nything that is controversial can be
said to be relevant to a brand.”
There’s also the question of who is relevant.
While the comments made by Stutsel, the Linfox
truck driver, were arguably more offensive than
McIntyre’s, the sports commentator’s profile
gave ex tra credibility to the claim that his
actions damaged his employer’s reputation.
Even anonymity isn’t necessarily a protection.
Former Department of Immigration and
Border protection employee Michaela Banerji
– who was fired for tweeting criticisms of the
department from an anonymous account – lost
a High Court fight over an injury claim.
Crucial to the decision was the public service
code of conduct’s stipulation that online
anonymity won’t last, and the importance the
Public Service Act places on an “apolitical and
professional public service”.
Bornstein argues it’s up to the govern ment to
regulate speech, not organisations, saying that
Australia lacks “a federal law that sets out to
protect gay people from vilification”.
Forsyth says Australia needs “stronger
protections of the rights of employees to express
their own religious or political views, in order
to fully participate as citizens in a democratic
society. Contracts and codes have been used to
silence employees – unfairly – in the interests of
protecting employers’ brands.”
Australia lacks a Bill of Rights, so many
freedoms we take for granted are implied.
“All these freedoms that we talk about – the
freedom of assembly, the freedom of expression,
the freedom of speech, the freedom of religious
belief and practising what you believe in – are
an amalgamation of different laws,” says
Goonrey. While a Bill of Rights would offer
clarity to a case like Folau’s, it would not give an
individual carte blanche to exercise their rights.
Any freedoms it afforded must not affect the
freedoms of others, he says.
But for now all eyes are on Folau. “If it goes
to a hearing, this will be an important case,”
says Goonrey. “It will set up how employers in
the future deal with employees, particularly in
relation to religious expression.” •••
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